Excerpt:.....interest at 6% from date of institution of claim petition till date of realisation.
- - the learned tribunal, however, came to the conclusion that the applicant had failed to establish that the collision had occurred on account of the negligence of respondent no. they have maintained complete silence for the very good reason, that according to them, the collision had not taken place with had their vehicle and they had not seen collision. we are of the opinion that the learned tribunal was perfectly justified in granting leave to amend the valuation and that once the amendment was allowed, it would relate back. assuming that a formal order condoning delay was necessary and that the tribunal had failed to do so whilst granting the application, an appeal being a continuation of the..........the leave of the court, the claim was raised to the figure of rs. 60,000. the stand taken by the truck driver and the truck owner, respondents nos. 1 and 2 respectively, before the learned tribunal was that the applicant had dashed against some other truck, a stationary truck, which was parked on the road. according to them, the truck belonging to respondent no. 2, which was being driven by respondent no. 1 was not involved in the accident at all. the version of respondent no. 1, the driver, was that at the point of time when he had passed beyond the stationary truck, parked on one side of the road, he heard a noise and had realised that a collision has occurred. the learned tribunal on an appreciation of evidence came to the conclusion that the defence of respondents nos. 1 and 2 to.....

Judgment:

M.P. Thakkar, J.

1. A doctor employed by the Directorate of Medical Services (Employee's State Insurance Scheme), aged about 37, sustained serious injuries on September 13, 1973 at 3.30 p.m., when the scooter on which he was proceeding from Nadiad to Ahmedabad, collided with a truck, belonging to respondent No. 2 being driven by respondent No. 1. He had to be hospitalised for above five months and had to be operated upon five times. He developed a permanent limp as a result of shortening of his left leg to the extent of 1/2'. He also acquired some other handicaps on account of the mishap. The injured doctor, appellant herein, instituted Motor Accidents Claim Application No. 8/74, before the Motor Accidents Claims Tribunal of Ahmedabad (Rural), at Narol. Initially, his claim for compensation before the tribunal was valued at Rs. 40,000 but subsequently, with the leave of the court, the claim was raised to the figure of Rs. 60,000. The stand taken by the truck driver and the truck owner, respondents Nos. 1 and 2 respectively, before the learned tribunal was that the applicant had dashed against some other truck, a stationary truck, which was parked on the road. According to them, the truck belonging to respondent No. 2, which was being driven by respondent No. 1 was not involved in the accident at all. The version of respondent No. 1, the driver, was that at the point of time when he had passed beyond the stationary truck, parked on one side of the road, he heard a noise and had realised that a collision has occurred. The learned tribunal on an appreciation of evidence came to the conclusion that the defence of respondents Nos. 1 and 2 to the effect that their truck was not all involved in the collision was 'untrue'. Their version that the applicant had collided with the stationary truck was disbelieved and rejected. The learned tribunal, however, came to the conclusion that the applicant had failed to establish that the collision had occurred on account of the negligence of respondent No. 1-driver, though such was not the version of respondent No. 1-driver who (it will be recalled) had come forward with total denial and had contended that there was no collision with his truck at all. It his version was disbelieved there was no question of the alleged negligence of the applicant. Two persons would know about the circumstances in which the collision occurred if the truck driven by respondent No. 1 was involved in the accident, viz., (1) the applicant, and (2) the driver. The driver did not say that though there was a collision it was the applicant who was negligent. Where then was the question of resorting to conjecture to hold that the driver who denied the collision altogether (and whose version was disbelieved) was not guilty of negligence, but the applicant (whose version regarding collision was believed) himself was negligent Even so, strangely enough relying on the position of the scooter lying on the road as revealed by the panchnama which was made later in the evening, the learned Tribunal concluded that the applicant must have been negligent. In this view of the matter, the learned Tribunal dismissed the claim petition instituted by the appellant-doctor by its impugned order dated September 18, 1975. The injured-doctor has approached this court by way of the present appeal, has challenged the legality and validity of the decision rendered by the learned tribunal, and has claimed compensation to the tune of Rs. 60,000 for the injuries sustained by him.

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2. The collision occurred on the National Highway at a place about 2 kms. from Bareja at about 3-30 p.m. By the very nature of things, there in no eye-witness to the collision other than the applicant himself and the driver of the truck and his companion, Dinesh, who have been examined as the witnesses of the truck owner. The driver and his companion, Dinesh, have assumed the posture that the collision occurred with the stationary truck and not with their truck. They have, therefore, not narrated the circumstances in which the collision occurred. In view of the serious damage to the truck being driven by respondent No. 1 which was noticed at the time of the panchnama made on the date of the occurrence, there is no manner of doubt that the collision had taken place with the said truck as we have already discussed a short while ago. Barring the applicant, the only other person who could have thrown light on the question as to the manner and the circumstances in which the collision occurred, were the driver and his companion. They have maintained complete silence for the very good reason, that according to them, the collision had not taken place with had their vehicle and they had not seen collision. It has been found that both of them are lying on this point. Under the circumstances, the only evidence which is available to us is the evidence provided by the applicant himself and the finding on this question will have to be recorded on the basis of his evidence in the light of the circumstances that the driver and his companion, who must have known in what circumstances the collision occurred, have refused to tell the truth and have maintained silence on this aspect.

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3. It appears that the learned tribunal was carried away by the contents of the panchnama, Ex. 122, of the scene of occurrence which was made between 5-30 and 6-30 p.m. It was mentioned in the panchnama that the scooter was lying across that road in such a away that its front part was 11 1/2 feet from the western edge of the tar road (i.e., the left hand side edge of the road having regard to the direction in which he was proceeding) and that its rear wheel was 4 1/2 feet from the opposite edge, viz., the eastern edge. From this recital, he jumped to the conclusion that the scooter was entirely on its wrong side. Reliance was also placed on the circumstance that the collision took place with the front right hand side part of the truck. The learned Tribunal formed the opinion that having regard to this circumstances there was no possibility of the scooter being pushed on its right on the east. This was the sole ground on the basis of which the learned Tribunal recorded a finding adverse to the appellant on this question.

4. Now, in the first place, the learned Tribunal has overlooked the circumstances that as a result of the collision, the scooter may have been flung to some distance depending on the speed of the vehicles, the position of the governor of the scooter and several circumstances. In our opinion, it would not be possible to draw any inference as to on which side of the road the scooterist was going on the basis of the place where the scooter was found to be lying 'after' the collision. In the second place, it has been established that the collision took place after 3-30 p.m. and the panchnama was made at about 5.30 p.m. The truck driver may have moved his vehicle soon after the collision in order that the traffic on the road was not blocked up. So also he or someone else might have moved the scooter so that it would not obstruct the traffic on the road. There war no guarantee that the vehicles in question remained frozen exactly on the spot where they were found at the time of the panchnama. Under the circumstances, were are of the opinion that there is no basis whatsoever for drawing the inference that the scooterist was going on the wrong side of the road. Going by probabilities, it is impossible to believe that the scooterist would have proceeded headlong in the direction of the truck. The scooterist could not have done so unless he wanted to commit suicide. The truck driver could have seen the scooterist coming from the opposite direction form the considerable distance. He should have, therefore, slowed down his vehicle or changed the gear or taken sufficient precaution in order to ensure that there was no collision, he being the driver of the heavier vehicle. The driver has stated in his evidence that he was moving at a speed of 35 Kms. to 40 Kms. per hour. His companion, Dinesh, who is the son of the truck owner, and claims to be the cleaner of the vehicle, has deposed that the speed was 25 to 30 Kms. per hour. We refuse to accept this evidence at its face value. In fact, on probabilities, we are inclined to believe that the truck driver must have been proceeding at a considerably high speed having regard to the fact that he was driving the vehicle on the National Highway.

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5. One more question requires to be resolved before we proceed to determine the issue regarding quantum of damages. It appears that initially the appellant had valued his claim for compensation at Rs. 40,000. Later on he made an application (Ex. 60) on January 16, 1975, for amendment of the claim petition by revising the valuation upwards from Rs. 40,000 to Rs. 60,000. The learned Tribunal after hearing both sides, by its order dated February 4, 1975, passed below the application, granted the prayer and permitted the appellant to amend the claim and to pay additional court fees on that basis. In the course of his order, he has observed that this will be without prejudice to the contention of the other side that the amendment having been made after the expiry of the period of limitation, no additional amount should be awarded to him even if the period of limitation, no additional amount should be awarded to him even if he made out a case in that behalf. We are of the opinion that once the application for amendment was granted, the learned trial judge ought to have passed an appropriate order in regard to condonation of delay. It was not a deliberate delay. The appellant was not to gain anything by valuing the claim at a lower figure initially. No prejudice was caused to the other side. The appellant could have valued his claim at Rs. 60,000 even initially and the other side could not have objected to it. Merely because the valuation was revised after the period of limitation, it cannot be said that any prejudice has been occasioned to the other side. We are of the opinion that the learned Tribunal was perfectly justified in granting leave to amend the valuation and that once the amendment was allowed, it would relate back. Assuming that a formal order condoning delay was necessary and that the Tribunal had failed to do so whilst granting the application, an appeal being a continuation of the main proceeding, we can do so. In our opinion, delay, if any, deserves to be condoned. Having regard to the circumstances of the case, particularly having regard to the fact that there were no mala fides on the part of the appellant, and the most important factor, viz., the other side, has not changed its position at all, and there is no prejudice to the other side, we have no hesitation in doing so now.

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6. What has so far been accepted without debate, dispute or demur (of course, it does not preclude the insurance company from doing so now merely on that account) has been questioned possibly for the first time by the insurance company. Counsel for the insurance company has contended that since the clause limiting the liability of the insurance company restricts the liability to the amount specified in the Motor Vehicles Act, the insurance company cannot be saddled with the liability to indemnify the insured in respect of costs and interest on the amount of Rs. 50,000. In other words, Rs. 50,000 means Rs. 50,000 all told. Conveniently (does it behove the insurance company ?) a blind eye is turned to the provision contained in sub-s. (1) of s. 96, with stares the insurance company in its face, and which, in terms, provides that the liability of the insurer to satisfy the judgments against the insured will extend to the satisfaction of the decree for a sum not exceeding the sum assured along with any amount payable in respect of costs and any sum in respect of interest on that sum by virtue of any enactment relating to interest on judgments. The said provision in so far as material deserves to be quoted :

'96. (1) ......... the insurer shall, subject to the provisions of this section, pay to the person entitled to the benefit of the decree, any sum, not exceeding the sum assured payable thereunder, as if he were the judgment-debtor, in respect of the liability, together with any amount payable in respect of costs and any sum payable in respect of interest on that sum by virtue of any enactment relating to interest on judgments.'

7. Having regard to the provision contained in s. 96(1), there is no escape from the conclusion that the liability of the insurer does not stop short of the sum assured by the policy. An additional statutory liability is thrown on the shoulders of the insurer by providing that the insurer shall also be liable to make payment to the person entitled to the benefit of the decree, besides the sum assured under the policy, the amount payable in respect of costs and any sum payable in respect of interest on the said sum. Costs and interest must of course be computed on the sum assured. But subject to this limitation, the burden to discharge the liability in respect of cost and interest on the sum assured has been cast on the insurer. The principle underlying the aforesaid provision is self evident. In the eye of law, the compensation would be payable to the third party on very date of the accident. However, when the liability is disputed by the other side, it has to be determined by competent court. In an ideal state of affairs one would except it to be settled within a couple of months, but there is an inordinate time distance between what is 'ideal' and what is 'real'. Till the dispute is settle by court, which, in the present state of affairs, takes considerable time (in the present case it has taken about seven years) the third party who is sought to be protected would be virtually altogether deprived of the benefit of the sum assured, if the liability to pay costs and interest were not thrown on the shoulders of insurer. In a given case, the amount representing the loss of interest and the amount of costs may be a very large amount. In the present case, loss on account of interest itself would work out at about 42% going by the unrealistic rate of interest at 6% and at about 100% going by the rate of interest at 15%, admittedly obtaining at present. If this amount can not be recovered from the insurance company, the person who is entitled to the benefit of the decree would in reality stand to lose it altogether, for it is seldom that it can be recovered from the truck owner or the driver. On the other hand, the insurance company which is liable to pay the insured amount immediately would secure the benefit of the users of the said sums for the period during which the litigation remains pending in the court. In other words, the insurer does earn interest on the amount which is payable at once but is paid after a lapse of years. Thus, it is the insurer who benefits by the delay occasioned in the court. And it is, therefore, but just the proper that the insurer is saddle with the liability to this extent and is obliged to discharge the burden in respect of the item of interest. The same would be the position with regard to claim for costs. The claim is being resisted by the insured in order to protect the interest of the insurance company who would otherwise have to pay the sum of assured. It, therefore, stand to reason that the insurer should be made liable to pay the interest and costs on the sum assured. On first principles, therefore, the burden should rest on the shoulders of the insurer and that principle has be given a statutory shape in sub-s. (1) of s. 96. There is, therefore, no escape from the conclusions that the liability to pay interest and cost on the sum assured will also have to be borne by the insurer notwithstanding the fact that in the insurance policy a particular amount is specified as a sum assured.

8. The appeal is, therefore, partly allowed. We hold that the appellant is entitled to a global sum of Rs. 60,000 by way of compensation. The appellant will also be entitled to interest at 6% from the date of the institution of claim petition till the date of realisation. He will also be entitled to costs calculated on the said amount, throughout. We direct that the aforesaid amount shall be paid to the appellant by respondents Nos. 1 and 2. We also hold that the appellant will be entitled to seek satisfaction of the judgment as against respondent No. 3, the insurance company, namely, New India Assurance Co., to the extent of Rs. 50,000 along with costs calculated on Rs. 50,000 and interest at 6% calculated on Rs. 50,000 from the date of the institution of the petition till the date of realisation. The rest of the liability will have to be borne by respondents Nos. 1 and 2. The appeal is partly allowed to the aforesaid extent.